Anapol Weiss shareholder, Larry E. Coben was invited as one of only twenty-five attorneys across the country to testify before the Judicial Conference Advisory Committee on Evidence Rules regarding Proposed Amendments to the Federal Rules of Evidence 106, 615, and 702. This invitation is a reflection of Mr. Coben’s experience and reputation as a nationally recognized Trial Attorney.
In August 2021, the Judicial Conference Advisory Committee Chaired by Hon. Patrick J. Schiltz released three proposed amendments for public comment over a period which ends on February 15, 2022. The proposed amendments were to Rules 106, 615, and 702.
Rule 106, the Rule of Completeness
The proposed amendment seeks to address two concerns:
“First, … [to] allow completion over a hearsay objection to the completing portion of a statement.” The trial judge would have discretion as to whether to allow the completing statement to be used for its truth or only for context. The amendment would, however, prevent a party who had presented a statement in a misleading manner from foreclosing completion with a hearsay objection.
“Second, … [to] permit completion of oral statements under Rule 106.”
Rule 615 on Witness Sequestration
The concern with the existing Rule is that it covers only the physical exclusion of witnesses from the courtroom, with no express provision to address witness access to testimony outside the courtroom. The proposed amendment would “… specify that an order of exclusion would apply only to exclude witnesses from the courtroom; but the amended rule would state that the trial judge could enter additional orders extending protections beyond the courtroom on a discretionary basis.”
Rule 702 on the Admissibility of Expert Testimony
The proposed amendment to Rule 702 on the admissibility of expert testimony would change the language of the Rule to “…address the separate concern that many courts have found that the questions of sufficiency of basis and reliability of application are questions of weight and not admissibility.”
Mr. Coben’s submission to the Committee on Rule 702 essentially states that the proposed amendments to this Rule are unnecessary and may impose inappropriate restrictions on the use of experts at trial. Coben admits that when Rule 702 was amended to accommodate the Daubert criteria of admissibility, it caused some difficulty for courts and attorneys who struggled to adapt to the new standard. However, those difficulties have since been resolved and, in his opinion, “there is virtually no abuse or misuse of these evidentiary principles of admissibility.”
In summary, Coben’s position is that, “Litigants have every opportunity to proffer expert opinions and/or object to their proffer and courts have the necessary tools to evaluate admissibility. Changing the verbiage of Rule 702 is unnecessary and in my opinion it will only Litigants have every opportunity to proffer expert opinions and/or object to their proffer and courts have the necessary tools to evaluate admissibility. Changing the verbiage of Rule 702 is unnecessary and in my opinion it will only serve to confuse litigants and courts who have adjusted well to perquisites for the admissibility of expert testimony.” The proposed amendment serves no purpose.
Coben’s submission also represents the position of the Attorneys Information Exchange Group (AIEG) for which he is the Chief Counsel. The AIEG is a non-profit organization of over 800 civil litigators who work across the United States to represent thousands of Americans pursuing financial compensation for injuries suffered from defective consumer products.
Larry Coben is an experienced litigator with more than 40 years of experience representing consumers across the United States against companies whose defective or unsafe products have injured or killed people. He has obtained multi-million dollar verdicts and settlements across the country, he is the author of dozens of Amici briefs in the United States Supreme Court and in other appellate courts across the country. He was the recipient of the 2010 AAJ Seven J. Sharp Public Service Award, he has been recognized as a Top Lawyer in Pennsylvania by Super Lawyers® since 2011, and he is the author of several books and hundreds of legal articles.
Read Larry Coben’s full Commentary Regarding Proposed Changes to Rule 702 here.
